More Time at Gitmo?

“The American system of justice is a key part of our arsenal in the war against al-Qaeda and its affiliates,” President Obama said in a statement today. Very true, which is why it was frustrating that his comments came with an executive order that moved away from a recognition of what our courts can do. The order lifted a block on new military-commission trials at Guantánamo, which had been put in place two years ago, when Obama said that he wanted to close the prison in a year. According to a “fact sheet” the White House put out today, he still wants to close it, in theory. In practice, though, it doesn’t look like it will be anytime soon, and, with the new commitment to commissions, certain suspects are less likely to have to answer the accusations against them in real courts, before American juries.

Who wins in this? Do we think that “American system of justice” means whatever it is Americans do, as long as some court-like trappings are present? The order acknowledges that the “privilege of the writ of habeas corpus” is available to inmates, but also sets up a routine for holding prisoners indefinitely without charges (what the order calls “the executive branch’s continued, discretionary exercise of existing detention authority”). In statements today, Obama, Attorney General Eric Holder, and Secretary of Defense Robert Gates all mentioned how highly they thought of the federal court system. Gates said,

For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice. To completely foreclose this option is unwise and unnecessary.

So this order doesn’t “completely foreclose” on the rule of law—is a partial foreclosure supposed to count as a moral stand? Given all the nice things the Administration has to say about the federal court system, one would think that it might find it wise, and even necessary, to actually use it a bit more. Instead, the statements seem more concerned to note that the President is not giving up any options or powers—as if bringing accused murderers to court were a prerogative, rather than an obligation. No doubt, Republicans, and some Democrats, have made it hard for Obama to close Guantánamo. But it might be easier if he wanted to do it; the order today makes it sound like he considers it a somewhat useful place. It is not.

Speaking of questionable detention measures: Can someone in the Administration explain, slowly and clearly, why Bradley Manning, the soldier accused of leaking the WikiLeaks cables, is required to stand naked in front of his cell in the morning and sleep naked, ostensibly for his own protection? The military’s explanations so far—that he could somehow harm himself with underwear (though he is not on suicide watch and is being monitored by video) so he can’t sleep in any, and then there is just no time for him to put underwear on in the morning before they get him out of the cell—are just not plausible. (By coincidence, a case about Americans being strip-searched after being arrested for minor offenses may be coming before the Supreme Court.) A naked man who hasn’t been convicted of a crime—that shouldn’t be what American justice looks like.

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